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Are college athletes employees? National College Players Association files first ever petition seeking union recognition

On January 28, 2014, the National College Players Association (NCPA) filed a petition at the regional office of the National Labor Relations Board (NLRB) in Chicago, seeking recognition as a labor union. The petition is the first of its kind seeking union recognition for college athletes. The NCPA is backed by the United Steelworkers Union and filed union cards signed by an undisclosed number of Northwestern University football players. The effort is being spearheaded by Ramogi Huma, president of NCPA, and Kain Colter, quarterback of the Northwestern football team. Huma has stated that the move to unionize players at Northwestern started with Colter, who reached out to him last spring and asked for help in giving athletes representation in their effort to improve the conditions in the National Collegiate Athletic Association (NCAA).

In order to have the NLRB consider a petition for a union representation election, at least 30 percent of the members of an appropriate bargaining unit working for an employer must sign union authorization cards. Before an election is scheduled, some key issues would have to be addressed. The primary issue is whether college athletes are employees with a right to unionize under the National Labor Relations Act (NLRA) or whether they are simply volunteering to participate in collegiate athletics. Another issue is whether there can be an “appropriate bargaining unit” consisting of all NCAA athletes, or at least those at all private universities. (The NLRA does not apply to public universities.) In order for a bargaining unit to be considered “appropriate,” the employees must share a “community of interest.” In other words, there must be substantial similarity in terms and conditions of employment.

The process of unionizing NCAA athletes could take years to occur. It begins with a decision by the appropriate Regional Director of the NLRB, whose decision can be appealed to the NLRB. That decision, in turn, can be appealed to the U.S. Court of Appeals and, ultimately, the Supreme Court. Northwestern is expected to oppose the petition.

The formal entity that would represent the players, if certified by the NLRB, is called the College Athletes Players Association (CAPA). It was created by Huma, Colter, and Luke Bonner, a former University of Massachusetts basketball player and brother of National Basketball Association (NBA) player Matt Bonner, with technical support from the United Steelworkers, who will not receive union dues from players. In a press conference, Huma reportedly stated that CAPA’s goals would be to press for better concussion and other medical protections, and for scholarships to cover the full cost of college attendance. CAPA would like athletic scholarships to be guaranteed even if a player is no longer able to continue for injury or other medical reasons. The group also called for a trust fund that players could utilize after their NCAA eligibility expires to finish schooling or be rewarded for finishing schooling. CAPA’s initial goals do not include a call for schools to pay salaries, Huma reportedly said during the press conference. However, he declined to rule out the possibility that CAPA would seek compensation for athletes in the future.

At the outset, only Division I Football Bowl Subdivision (FBS) football players and men’s basketball players will be eligible to join CAPA because they are best situated to make a case to be treated as employees, Huma reportedly said. He also reportedly said that only scholarship players are eligible for inclusion, as CAPA’s position is that these athletes are compensated by schools in the form of a “grant-in-aid” that is capped at the level of tuition, room and board, books and fees. Presumably, CAPA will argue that these scholarships are akin to compensation received by professional athletes, who are treated as employees under the NLRA.

No legal body after 1953 has recognized that athletes playing for university-based teams are “employees.” In 1953, in University of Denver v. Nemeth, the Colorado Supreme Court upheld a determination by the state Industrial Commission that Ernest Nemeth, a football player at the University of Denver, was an “employee” within the meaning of the Colorado workers’ compensation statute. As a result, the University was responsible to provide workers’ compensation benefits for his football injuries. Apparently stunned by the Nemeth decision, the NCAA responded by coining the term “student-athlete” and mandating its use by universities. By emphasizing the identity of athletes as “students,” the NCAA endeavored to diminish any tendency to characterize athletes as “employees.” Since then, it appears no court has recognized “student-athletes” as employees.

It is likely that this issue will be percolating for an extended period of time, and may even wind up before the Supreme Court.

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